Beadle v State of Tasmania H2/2001 [2002] HCATrans 212 (3 May 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No H2 of 2001

B e t w e e n -

IAN BEADLE

Applicant

and

STATE OF TASMANIA

Respondent

Application for special leave to appeal

GAUDRON J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM HOBART BY VIDEO LINK TO CANBERRA

ON FRIDAY, 3 MAY 2002, AT 12.52 PM

Copyright in the High Court of Australia

MR K.E. READ: If your Honours please, I appear with my learned friend, MS K.A. JAMES, for the applicant. (instructed by Phillips Taglieri)

MR T.J. ELLIS, SC: If your Honours please, I appear for the respondent. (instructed by the Director of Public Prosecutions (Tasmania))

GAUDRON J: Yes, thank you, Mr Read.

MR READ: Your Honour, we say that this application for special leave raises a question of law that is of public importance in that by deciding that the jurisdiction of the Workers Rehabilitation and Compensation Tribunal is limited to a consideration of the claim for compensation as - - -

GAUDRON J: That is not exactly what was said, was it? It did not say the jurisdiction was limited.

MR READ: In my respectful submission, that is precisely what the Full Court said, your Honour. The passages are at page 33 of the application book, particularly line 5, where his Honour Justice Underwood said:

Section 42 makes it equally clear that relevantly, the Tribunal's only jurisdiction is the determination of a claim for compensation.

GAUDRON J: Yes.

MR READ: Then what his Honour does is he equates those words, "a claim for compensation", with the words in section 32 and section 34, being the claim for compensation completed by the worker at or shortly after the time of injury. Now, our complaint is that a worker who records in his section 32 claim form, when he completes that - completes a claim, that potentially in ignorance of the nature of the injury, potentially with lack of adequate legal or medical advice, potentially as an illiterate or even a distaste for legalistic forms, and that person cannot them come to the Tribunal and by making an application under section 42 claim compensation for any injury which is wider than the one set out in the initial claim form.

GAUDRON J: It is not necessarily injury which is wider but injury which is different. That was why the applicant failed. It was different. It was found to be different.

MR READ: I accept that, your Honour. I accept that and I am prepared to run on that basis, to put my submissions on that basis, and I should have done that. That what we say is that in a situation of tribunals generally, where they are frequently constituted by persons without legal experience, representation may be in person or, with leave, as a lawyer, as is the situation in this Tribunal, that is, the persons hearing it have legal qualifications and with leave a lawyer can appear, that the jurisdiction - - -

GAUDRON J: One of the difficulties about this was why did you not seek to amend the notice or claim right at the beginning?

MR READ: Because, your Honour, to allow the Commissioner to properly understand the application to amend, it would have been necessary for all of the evidence which has thus far come out of the Tribunal to be led.

GAUDRON J: No, the reason for the application to amend was not simply to allow the Commissioner to know what was going on. It was to give the respondent an opportunity to investigate the claim as amended. It seems to me you took a course at first instance that had about it or had within it the seeds of what eventually happened. There may have been an explanation, but I do not see it.

MR READ: The explanation is one that I contend for, your Honour, and that is that without the evidence it was not possible for the Commissioner to understand the nature of the application. In so far as the Full Court have made comment that the application would also have let the respondent know the precise basis of the application, we say that that is wrong because of the simple fact that this wider injury, or different injury, was fully investigated and a report from a psychiatrist had been obtained at an early time by the respondent. The pre-trial procedures of the Tribunal also enabled a full understanding by the respondent of precisely what the injury was that was to be litigated, as, indeed, in my respectful submission, did the section 42 application.

We say that the error, and the error of public importance to workers in Tasmania and also generally in the work of a tribunal, is that the court equated the claim made, the prayer for relief made by the application to the Tribunal in section 42 - - -

GAUDRON J: No, it did not. It said there were different injuries giving rise to different claims and you had only claimed for one and you did not - - -

MR READ: In the section 32 claim form only one had been claimed for, that is correct, your Honour, but in the section 42 application the different injury was the injury which the worker sought to agitate.

GAUDRON J: That is right, but you can only make a claim in respect of an injury. That seems to me to be your difficulty. You made a claim in respect of one injury and you wanted to extend it to a different injury.

MR READ: Your Honour, I accept that. You can only make a claim in respect of an injury and the first task of the Tribunal is to identify the injury. If the Tribunal can undertake that task and can identify that injury, then it can determine whether or not a claim form has been lodged in respect of that injury.

GAUDRON J: Whether a claim has been made?

MR READ: Yes, within the terms of section 32, your Honour, and 34, and if it has not or has not been made widely enough, then the court could consider the amendment powers in section 34, but unless the court starts its process by determining what is the injury that is sought to be agitated rather than what is the injury set out in the claim form, unless it starts its task by identifying the injury - in this case a stress-related illness - it cannot and will not have the powers that are available to it within section 34.

So to put that another way, your Honours, if the worker is restricted to the injury named in the claim form and the claim form itself is in, I submit, potentially difficult terms for a worker - it is set out at the foot of page 46, where the worker is asked to identify the "Type of injury or disease, and part of body affected". In this case the worker has answered "Hypertension". Clearly, there can be no argument that is quite different to stress, but perhaps it highlights the difficulties that can arise for workers filling out these forms. I am not saying this occurred in this case and, indeed, it was not the evidence, but hypertension might be thought by some people to mean a particular type of tension, ie, to be equated to stress.

So when you have a very narrow question asked in the claim form to be answered by a worker who potentially suffers the handicaps that I have outlined, I submit that to then say the only injury that you can litigate in the Tribunal is that injury or an injury of the type set out in that answer at page 46, I submit improperly limits the jurisdiction of the Tribunal. The jurisdiction of the Tribunal ought to be for the claim made in the prayer for relief under section 42.

Essentially, the argument, if special leave is granted, is that the first task for the Tribunal is not to look at the claim form but to identify the injury, to go straight to section 25 and see whether or not there has been an injury, because if, for example, the section 42 application referred to something as far out as boundary fencing, they would say, "Well, there is not an injury. Out you go." But if there is an injury, they identify it and then determine whether the requirements of Part IV, section 32 and section 34, have been complied with. Has there been a notice of that injury given? If yes, continue. If no, go to the excusory provisions. Has there been a claim form? If yes, continue. If no, look at amendment. If those preconditions have been satisfied in respect of that injury, then, of course, it needs to be determined whether or not the relief sought is appropriate for that injury and one goes into the relief provisions.

GAUDRON J: Yes.

MR READ: Your Honour, we say that that approach was not adopted by the Full Court. It was adopted at first instance. That the fairness of the situation and the fact that this is remedial legislation dictates that it is first necessary to define the injury. What happened in the Full Court was the Full Court said, first of all, we define what the claim form says.

GAUDRON J: No, you do not have to define the injury, as such, but you have to be satisfied that what is being claimed is in respect of the same injury. Your definition can be way off beam, that is why there is a power of amendment, but what was being decided in this case was that there was one injury which did not result in a need for - there was an injury and it was a compensable injury, perhaps, but there was no loss which had to be compensated. Then there was another injury which related back to the unfortunate events - I forget exactly which - - -

CALLINAN J: That he witnessed and - - -

MR READ: From Port Arthur, your Honour, yes.

CALLINAN J: Yes.

GAUDRON J: Well, before Port Arthur - and the injury to which the claim related, so it was held, is a different injury which he suffered when he was waiting for people to determine where he was going to work.

MR READ: Precisely, your Honour, and there is no argument about any of those facts. There is one injury set out in the claim form under section 32. There is another injury set out in the section 42 application. We say that the application under section 42 gives the Tribunal jurisdiction. The Tribunal looks at that injury, defines what it is, determines it is quite different to the injury for which the claim form was completed, and then decides whether or not it should amend the claim form. That is the construction of the Act for which we contend and we contend for that construction in circumstances of remedial legislation.

Your Honours, I cannot advance the argument any further than I have. It is a simple point, we say, that the piece of paper filed under section 42 is determinant of the jurisdiction, not the piece of paper filled out initially by the worker under sections 32 and 34. We say that to limit the jurisdiction to 32 and 34 is not consistent with this piece of remedial legislation and not consistent with the determinations in relation to other workers compensation schemes across Australia.

GAUDRON J: No, but you wanted to treat it all as the one thing, did you not? That was the difficulty: you wanted to treat it all as the one.

MR READ: With respect, no, your Honour. With respect, the worker did not shy away from the difference between what was attempted to be agitated on the section 42 application and what had been completed in the section 32, 34 claim form. The worker did not say, "Hypertension has given rise to the following." The worker said, "That is one of the symptoms but it is not the same injury." I put it very ineloquently earlier, your Honour, when I put the proposition that this was an extension or a slightly different injury. Your Honour is quite right to categorise it as a completely different injury, but it is an injury which the worker brought to the Tribunal by a section 42 application and the Tribunal ought not be restricted in its consideration because of an earlier form potentially filled out in the circumstances to which I have referred. Those are the submissions for the applicant, your Honour.

GAUDRON J: Yes, thank you. We need not trouble you, Mr Ellis.

Having regard to the way in which this matter was conducted at first instance and to the issues that were decided by the Full Court, the proposed appeal does not enjoy sufficient prospects of success to justify the grant of special leave. Accordingly, special leave is refused with costs.

The Court will adjourn for approximately 10 minutes to enable a link to be established with the Northern Territory.

AT 1.09 PM THE MATTER WAS CONCLUDED